Here is a republication of my year-end review article outlining the important trends and cases from over the past year in Pennsylvania civil Litigation matters. The article was published in the Pennsylvania Law Weekly on December 22, 2022 and is republished here with permission.
By Daniel E. Cummins
December 22, 2022, Pennsylvania Law Weekly
As the world came out of this side of the COVID-19 pandemic in 2022 with many changes, so did the practice of law in Pennsylvania. The past year has confirmed, much to the satisfaction of many lawyers, parties, witnesses and judges, that the new widespread use of advanced communication technologies (ACT) like Zoom in litigation matters is here to stay. Moreover, 2022 marked another year of changes in the law that favored plaintiffs in their efforts to secure recovery within the Pennsylvania court systems.
Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.
As the world came out of this side of the COVID-19 pandemic in 2022 with many changes, so did the practice of law in Pennsylvania. The past year has confirmed, much to the satisfaction of many lawyers, parties, witnesses and judges, that the new widespread use of advanced communication technologies (ACT) like Zoom in litigation matters is here to stay. Moreover, 2022 marked another year of changes in the law that favored plaintiffs in their efforts to secure recovery within the Pennsylvania court systems.
Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.
Zooming Into the Future
Without question, the use of Zoom for minor court conferences as well as for depositions, at which a witness’s demeanor and credibility can still be assessed, has fostered the interest of judicial economy and has advanced the efficiency of the practice of law as a whole.
While large big city law firms have attempted to push back against this now entrenched and favorable advancement in the practice of law, the loss of hundreds of billable hours from travel time lost due to the increased use of Zoom in civil litigation matters is not a valid reason to go back to the ways of old. Gone are the days of lawyers inefficiently and expensively billing clients for driving to a court an hour each way and then walking 20 minutes each way from a parking garage in order to attend a simple 10 minute court conference.
According to a recent Sept. 27, 2022, article by Aleeza Furman of the Pennsylvania Law Weekly titled “Rules Committees Discontinue Proposals to Expand Remote Tech in Pennsylvania Courtrooms,” in January, five of the Pennsylvania Supreme Court’s eight procedural rules committees had submitted proposals for change to rules of procedure to cover the use of ACT in their respective divisions. Regrettably, the Pennsylvania Supreme Court missed a great opportunity for uniformity across the commonwealth in this regard when all of those proposals were inexplicably discontinued in September. Hopefully, the Pennsylvania Supreme Court will see fit to override that decision and will not stand in the way of the county courts of common pleas in enacting local rules regarding the use of ACT. In 2023, look for the county common pleas courts to attempt to enact their own proposed local rules to codify the permissible scope and parameters of the continued use of Zoom for court proceedings, some of which local rules proposals are already before the Supreme Court for consideration.
Business Interruption Coverage Cases
In 2022, while the pandemic waned business interruption insurance coverage disputes continued to work their way through the court system.
Under the business interruption cases, business owners who had been shut down by governmental closure orders during the COVID-19 pandemic are pursuing business interruption coverage under the insurance policies covering their company for losses sustained as a result.
Insurance company defendants have continued to prevail with their defenses available under their policies. Several courts have ruled that, where the presence or suspected presence of the virus that causes COVID-19 at a business property did not materially alter the property in such a way as to constitute a “direct physical loss of damage,” business owners were not entitled to secure insurance benefits under their business interruption business coverage. See Hirschfeild-Louik v. Cincinnati Insurance, PICS Case No. 22-1259 (W.D. Pa. Oct. 24, 2022 Hornak, J.).
Some of those same courts also found in other cases that the business owners’ requests for coverage under these circumstances were also barred by the plain and unambiguous virus exclusions found in the policies. See In re Erie COVID-19 Business Interruption Protection Insurance Litigation, No. 1:21-mc-1 (W.D. Pa. Oct. 14, 2022 Hornak, J.). It is anticipated that these business interruption coverage cases will work their way through the courts and possibly even up the appellate ladder in 2023.
Lingering Impact of Pandemic on Litigation
In 2022, the COVID-19 pandemic also made its lingering presence known by way of parties seeking to use the pandemic in legal arguments in an effort to secure a favorable decision on a variety of civil litigation issues.
In the case of Bellan v. Penn Presbyterian Medical Center, 271 A.3d 508 (Pa. Super. Feb. 22, 2022), the Pennsylvania Superior Court rejected a plaintiff’s argument that the closure of a defendant’s medical office during the pandemic should have served as an equitable reason to allow a plaintiff more time to complete service in a medical malpractice case. In Bellan, the Superior Court affirmed a trial court’s dismissal of a plaintiff’s medical malpractice complaint with prejudice based upon service of process issues.
In the Bellan case, the record confirmed that the plaintiff did not reinstate the complaint after the initial 30-day period expired and that the plaintiff did not attempt service thereafter until five months later, which additional effort was by improper means. As such, in addition to rejecting the COVID-19-based argument by the plaintiff, the court in Bellan also found that the plaintiff failed to make a good faith effort to complete service.
The defense bar also ran into difficulty in 2022 in attempting to rely upon the pandemic to further a defense favorable argument. In at least two separate decisions over the past year, the courts of Pennsylvania have rejected arguments by defense counsel that the time that the courts were closed due to COVID-19-related judicial closure Orders should be carved out of the delay damages calculations following the entry of a verdict. See Getting v. Mark Sales & Leasing, 274 A.3d 1251 (Pa. Super. 2022); Yoder v. McCarthy Construction, May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.).
These courts noted that the delay damages rule found at Pa.R.C.P. 238 is designed to encourage settlement negotiations between the parties. The courts essentially noted that, while the courts may have been closed, which may have resulted in some delays in the matter, nothing prevented the parties from continuing to pick up the phone or emailing one another in a continued effort to attempt to negotiate a settlement in the interim.
These courts reiterated the mandate of Rule 238 that the only time periods that may properly be carved out of the delay damages calculations are those periods of time where the plaintiff was the cause of the delay and where there is a a case under which the plaintiff secures a jury verdict that is no more than 125% a previously submitted settlement offer.
Rule Changes of Note
There were several notable rule changes issued by the Pennsylvania Supreme Court that went into effect over the past year.
On April 1, an amendment to Pa.R.C.P. 223.2, titled “Conduct of the Jury Trial. Juror Note Taking,” became effective. The rule on juror note taking was expanded to allow for jurors to now take notes during the opening statement and closing argument. The new amendments also provide that a trial court judge is no longer able to prohibit juror note taking in trials of less than two days’ duration.
On July 1, another notable rule change went into effect, this one applicable to appeals from courthouse arbitrations. This rule change amended the monetary cap noted under Pa.R.C.P. 1311.1, titled “Procedure on Appeal. Admission of Documentary Evidence.”
Under the old rule, the parties could agree that, on an appeal from a courthouse arbitration, the amount that a jury could award on the case would be up to $25,000 and that the case would proceed primarily on documents in lieu of expert testimony.
Under this new amended Rule 1311.1 handed down by the Pennsylvania Supreme Court, plaintiffs will now have the benefit of higher caps at such arbitrations. The amended rule provides that the monetary limit on arbitration appeals in civil litigation matters is the “amount equal to the jurisdictional limit of the judicial district in which the action was filed.”
Most county courts have a higher jurisdictional limit, typically amounting to $50,000. Going forward, given that there are differing jurisdictional limits in different counties, civil litigators should make a mental note to check the jurisdictional limit applicable to the particular county in which the case is pending before agreeing to a Rule 1311.1 appeal from an arbitration award.
Another plaintiff-friendly rule change that was handed down in 2022 by the Pennsylvania Supreme Court will go into effect on Jan. 1, 2023. On that date, amendments to Pa.R.C.P. 1006, 2130, 2156 and 2179 venue rules will become effective and will allow a medical malpractice plaintiff to file their lawsuit in any county where the medical provider regularly conducts its business or has significant contacts.
Given that, under the old rule, which was in place for the past 20 years, plaintiffs could only bring suit in the county where the medical treatment was completed, this amendment handed down by the Pennsylvania Supreme Court this year greatly expands the plaintiffs’ abilities to engage in favorable forum shopping for their medical malpractice claims.
Lessons in Proper Pleading
Over the past year, several notable decisions were handed down that provide lessons in proper pleading in civil litigation matters.
Lessons in complaint drafting were provided by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Gowden v. Pennsylvania Department of Transportation, No. 21-CV-3046 (C.P. Lacka. Co. March 31, 2022). In Gowden, Nealon confirmed that, under the mandates of Pa.R.C.P. 1019, each defendant is entitled to be separately apprised as to the allegations asserted against that particular defendant. As such, generalized lump sum pleadings in the body of the complaint against “all defendants” were ruled to be improper.
Nealon also held that lumping all of the defendants under a single count of liability in the complaint was improper under Rule 1019. The court held that each defendant is entitled to have the claims asserted against it set forth in separate counts in the complaint for the sake of clarity and in order to be fully apprised of the claims presented.
Another repeatedly presented lesson in proper pleading handed down by the courts over the past year confirmed that, wherever a plaintiff alleges a violation of a statute, ordinance, or regulation, the plaintiff is required to provide the citation to that statute, ordinance, or regulation in the complaint.
In the federal court case of trucking accident case Fuhrman v. Mawyer, No. 1:21-CV-02024 (M.D. Pa. June 28, 2022 Kane, J.), the plaintiff generally alleged violations of Federal Motor Carrier Safety Regulations. The court ruled that where a plaintiff asserts that a defendant violated statute or regulation, the plaintiff should cite to that statute or regulation. Given that the plaintiff’s complaint in this case was deficient in this regard, the court granted the defendant’s F.R.C.P. 12(e) motion for a more definite statement but allowed the plaintiff the right to file an amended complaint to correct the error.
A similar ruling was issued in the state courts. In the premises liability case of Comerford v. Burrier, No. 20-CV-1368 (C.P. Lacka. Co. July 22, 2022 Nealon, J.), the court ruled, under Pa.R.C.P. 1019, that if a plaintiff alleges that a defendant violated a statute or ordinance, then the plaintiff should cite that statute or ordinance in the complaint in order to provide proper notice to the defense of the claims presented. In this case, where that did not occur, preliminary objections were granted and the plaintiff was allowed the right to amend.
In 2022, defendants were also given lessons in pleading drafting. A couple of courts handed down reminders that even new matter pleadings are required to have factual allegations pleaded to support the defenses asserted and to put the plaintiff’s on proper notice of the same. See Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. Oct. 1, 2021 Williamson, J.); J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.).
In the Philips case, Judge David J. Williamson of Monroe County provided the reminder that a new matter is a pleading and that all pleadings are subject to the mandates of Pa.R.C.P. 1019. One of the mandates of Pa.R.C.P. 1019 is that the “material facts on which a … defense is based shall be stated in a concise and summary form. Williamson confirmed that even new matter pleadings must have a factual specificity that enables the plaintiff to prepare a response to the same and that new matter pleadings that do not meet this mandate may be stricken in the face of preliminary objections filed by a plaintiff.
Allegations of Recklessness
Over the course of 2022, the trial courts continued to hand down conflicting decisions, sometimes even within the same county court, on the proper pleading of allegations of recklessness in civil litigation matters. Then, on Nov. 21, the Pennsylvania Superior Court provided much needed appellate guidance on the issue in the case of Monroe v. Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam).
In a split decision, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action. As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally and without regard to the sufficiency of the underlying facts averred.
The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the previous split of authority among the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove any doubt that, so long as a plaintiff’s complaint specifically alleges facts to state a prima facie claim for the tort of negligence, and also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.”
In two separate dissenting opinions in the case, one by President Judge Emeritus John Bender and one by Judge Victor Stabile, the alternative rule was advocated, based upon 50 years of precedent, that a plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, the point of view, as found in the dissenting opinions, was not adopted by the majority of the judges in the en banc decision in this case.
Therefore, under the rule enunciated by the majority in this Monroe case, a plaintiff may plead recklessness in any case whatsoever with reckless abandon and without regard to the facts presented. The majority suggested that a defendant can revisit the issue of the validity of the recklessness claims by way of a summary judgment motion after discovery has been completed.
The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the previous split of authority among the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove any doubt that, so long as a plaintiff’s complaint specifically alleges facts to state a prima facie claim for the tort of negligence, and also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.”
In two separate dissenting opinions in the case, one by President Judge Emeritus John Bender and one by Judge Victor Stabile, the alternative rule was advocated, based upon 50 years of precedent, that a plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, the point of view, as found in the dissenting opinions, was not adopted by the majority of the judges in the en banc decision in this case.
Therefore, under the rule enunciated by the majority in this Monroe case, a plaintiff may plead recklessness in any case whatsoever with reckless abandon and without regard to the facts presented. The majority suggested that a defendant can revisit the issue of the validity of the recklessness claims by way of a summary judgment motion after discovery has been completed.
Pleading the Fifth at a Deposition
Over the past year a couple of decisions were handed down by trial courts on the important issue of when a tortfeasor defendant can assert his or her Fifth Amendment right against self-incrimination in a personal injury civil litigation matter that arises out of the same conduct for which the tortfeasor may face criminal charges.
In the case of Sweet v. City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the author of this article argued that his client should be permitted to assert his Fifth Amendment right against self-incrimination relative to efforts to depose the defendant in a fatal motor vehicle accident case.
The opposing parties asserted that the defendant should not be permitted to assert his right against self-incrimination because the defendant had already been charged with traffic citations and that, in light of the same, the defendant did not face the prospect of further prosecution under 18 Pa.C.S.A. Section 110(1)(ii).
However, in Sweet, the trial court confirmed that there was an exception under the law that allowed for further prosecutions in situations where evidence in support of an additional criminal offense was not known to the prosecuting officer at the time of the filing of the first set of charges against the defendant.
Therefore, since the defendant was found to have a reasonable basis to fear the prospect of self-incrimination by his own deposition testimony, the court found that it was not “perfectly clear” that the defendant was mistaken in this apprehension that he might incriminate himself. Consequently, the court refused to override the defendant’s assertion of his Fifth Amendment privilege and denied the motion to compel the defendant to answer deposition questions about the accident.
The court did go on to note that, if the defendant was able to secure an immunity agreement from the district attorney, then the fear of self-incrimination would be eradicated and that the defendant could then be compelled to answer questions at a later deposition.
This issue and the same result can also be found in the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), in which the alleged tortfeasor defendant was also represented by the law firm of the author of this article.
Enforceability of the Regular Use Exclusion
In two recent cases over the past year or so, the Pennsylvania Superior Court has ruled that the regular use exclusion found in automobile insurance policies is unenforceable as it is in violation of the mandates of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL). See Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021); Jones v. Erie Insurance Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022).
The regular use exclusion basically posits that, where an insured has another vehicle regularly available for his or her use that is not covered under the applicable insurance policy, the policy will not provide UM or UIM coverage if the insured is injured while utilizing that other non-covered vehicle. The scenario typically arises where an insured is injured while driving a work vehicle and then seeks to recover UIM benefits provided under a separate personal vehicle owned by the injured party at home.
In the Rush case and the Jones v. Erie Insurance cases the Pennsylvania Superior Court essentially utilized the same rationale that the Pennsylvania Supreme Court utilized in the household exclusion case of Gallagher v. Geico, 201 A.3dd 131 (Pa. 2019). That rationale is that the regular use exclusion was unenforceable in the eyes of these Superior Court judges in that the exclusion, by excluding coverage in certain scenarios, improperly acted as a de facto waiver of UIM coverage when the MVFRL requires insurance companies to secure a knowing and written waiver of UM or UIM coverage from its insureds in order for for the waiver to be valid.
What to Watch for in 2023
There are several notable issues that are set to be decided by the Pennsylvania Supreme Court in 2023.
The above-noted case of Rush v. Erie Insurance on the enforceability of the regular use exclusion is currently pending before Pennsylvania’s highest court.
With respect to the enforceability of the household exclusion, which the Pennsylvania Supreme Court has repeatedly shot down, that issue is back before the high court in the case of Erie Insurance Exchange v. Mione. The primary question in that case is whether the household exclusion remains otherwise valid in those cases where a plaintiff had validly rejected UIM coverage in writing such that the de facto waiver of coverage argument is inapplicable.
Another anticipated decision from the Supreme Court of Pennsylvania involves the issue of whether an employer who holds a social event, such as a golf outing, should be considered to be a social host and thereby afforded the protections afforded under the law when one of the attendees is allegedly involved in a motor vehicle accident while allegedly under the influence. Keep an eye out for the court’s decision on this issue in the case of Klar v. Dairy Farmers of America.
In the upcoming year, in the case of The Bert v. Turk, the Pennsylvania Supreme Court will also address the issue of whether a punitive damages award in a personal injury matter that is many times higher than the compensatory award is constitutionally sound if the allegedly excessive amount of punitive damages is divided up among several tortfeasors.
The Pennsylvania Supreme Court’s decisions in these cases will signal whether the court will remain firmly entrenched in favor of plaintiff’s causes as it has been in recent years or will instead move back more toward the center.
Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.
